CRL.M.C. No. 9271 of 2002

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE K.R.UDAYABHANU** **WEDNESDAY, THE 7TH NOVEMBER 2007 / 16TH KARTHIKA 1929** **Crl.MC.No. 9271 of 2002(A)** **------------------------------------** **CRL. MP 1564/002 IN CC.333/2001 OF JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD** **..........................................** ## **PETITIONER:/ACCUSED** **-----------------------------------** **1. A.V.MAMMACHAN, FIELD OFFICER, DISTRICT VETERINARY CENTRE, PALAKKAD.** ## **2. PRASAD B.H., U.D.CLERK,** - **DISTRICT VETERINARY CENTRE, PALAKKAD.** **3. VIJAYAN, DISTRICT VETERINARY CENTRE, PALAKKAD.** **4. MARAKKAR, ATENDER, DISTRICT VETERINARY CENTRE, PALAKKAD** **5. UNNIKRISHNAN, DISTRICT VETERINARY CENTRE, PALAKKAD** ## **6. SAMPATH, ATTENDER,** - **DISTRICT VETERINARY CENTRE, PALAKKAD.** ## **7. DR.V.C. KAMALU,** **DISTRICT ANIMAL HUSBANDRY OFFICER, PALAKKAD.** **BY ADV. SRI.S.SREEKUMAR** ## **RESPONDENTS/COMPLAINANT** **------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **2. DR.RAJAN CHUNGATH, GOVARDANA HOUSE, NJANKITTIRI AMSOM DESOM, PATTAMBI, PALAKKAD DIST.** **BY PUBLIC PROSECUTOR SRI. C.K.SURESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/11/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **O R D E R** **NO REPRESENTATION. DISMISSED FOR NON PROSECUTION. 07/11/2007. SD/- K.R.UDAYABHANU, JUDGE.** **ORDER ON CMP NO. 7189/2002 IN CRL. MC NO. 9271/2002 D** **DISMISSED 07/11/2007. SD/- K.R.UDAYABHANU, JUDGE.** True copy tga ## **V.K.MOHANAN, J. --------------------------------------------Crl.M.C.No. 9271 of 2002 --------------------------------------------Dated this the 14[th] day of August, 2008** ## **O R D E R** Challenging Annexure-III order of the Judicial First Class Magistrate Court-II, Palakkad, accused Nos.1 to 5,7 and 8 in C.C.No.333 of 2001 of the court below, who are the petitioners in this Crl.M.C., approach this Court. Annexure-III order arose out of Annexure-II petition filed by the Assistant Public Prosecutor Gr-II seeking permission from the court below under Section 321 of the Criminal Procedure Code for withdrawal of the above case. 2. C.C.No.333 of 2001 was instituted upon a final report filed by the Assistant Sub Inspector of Police, Town North Police Station, Palakkad after investigation in Crime No.57 of 2000. The accused in the above case are charge sheeted for the offences punishable under Sections 143,347,147,294(b),506(1),109 read with Section 149 I.P.C. The allegation against the accused is that on 17.2.2000 at about 10 a.m., a group of people led by the first accused rushed into the office room of the de facto complainant and asked him to sign in documents prepared ## **CRL.M.C.NO. 9271 OF 2002** ## **:-2-:** by them for the release of wages in favour of one Narayanankutty who is the Inspector of the Society for prevention of cruelty to animals. It is the further case of the prosecution that the accused abused and threatened the de facto complainant and also the de facto complainant was illegally detained for certain time. The Assistant Public Prosecutor Gr-II, Palakkad moved the court below by filing a petition under Section 321 of the Code of Criminal Procedure for withdrawal of the case against the accused. In the petition filed by the Public Prosecutor, it is stated that the Government of Kerala by its letter No.40194/L3/2001/Home dated 1.12.2001 have expressed their no-objection to withdraw the above case. Consequently, the Additional District Magistrate, Palakkad as per his proceedings No.D1.49649/01 dated 24.12.2001 requested the Assistant Public Prosecutor to take steps to withdraw the above case with leave of the court below. Accordingly, a petition was filed wherein it is specifically ## **CRL.M.C.NO. 9271 OF 2002** ## **:-3-:** mentioned that the de facto complainant is the Chief Veterinary Officer, Palakkad and the 8[th] accused is the District Veterinary Officer who is a Senior Officer of the de facto complainant. All the other accused persons are working in the same department. It is further stated in the petition that if the above case is proceeded with, it may result in promoting enmity between the employees and the consequential result will be that the entire administration of the office will be stopped. It is also stated that the said acts are outcome of hot exchange of words regarding the issuance of salary of one of the employees and there was no premeditation or prior intention. The Assistant Public Prosecutor, in the petition it is specifically stated that in order to have a better relationship between the persons who are working in same Department and to maintain a good office and smooth functioning of the office, the case is to be withdrawn. Thus, according to the Assistant Public Prosecutor, there are sufficient grounds to withdraw the ## **CRL.M.C.NO. 9271 OF 2002** ## **:-4-:** above case. 3. The learned counsel for the petitioners submits that the learned Magistrate dismissed the petition taking into account certain other facts which are irrelevant and strange for consideration while dealing with a petition under Section 321 of the Code of Criminal Procedure. It is the above order sought to be quashed in these proceedings. 4. I have heard Sri.S.Sreekumar, learned counsel appearing for the petitioners and also the learned Public Prosecutor. 5. Learned counsel for the petitioners submits that the impugned order is not legally sustainable as the learned Magistrate had dismissed the petition on the grounds which are alien to the provisions under Section 321 of Cr.P.C. I have carefully perused Annexure-III order. It appears to me that the learned Magistrate dismissed the petition for withdrawal of the prosecution on the ground that the connected case is still pending ## **CRL.M.C.NO. 9271 OF 2002** ## **:-5-:** and no effort is taken to withdraw the same. Learned counsel, on the strength of the decision of this Court reported in **Krishnan Kakkanath** v. **Ravi** [2002(2) KLJ 10], submitted that pendency of connected case is not a ground to reject a petition filed under Section 321 of the Cr.P.C. 6. Normally, when a petition is filed under Section 321 of Cr.P.C. for withdrawal of prosecution, firstly what the court expected to verify is whether the Prosecutor has applied his mind in the facts and circumstances of that particular case and if the court is of the opinion that the above condition is satisfied, normally the petition is to be allowed. Of course, it is also the duty of the court to see whether a petition is filed with fraudulent intention or not. In order to verify those aspects, the court has to consider the facts and circumstances involved in the case and the grounds taken in the petition for withdrawal of the case. In the present case, it is revealed from the records, especially ## **CRL.M.C.NO. 9271 OF 2002** ## **:-6-:** from Annexure II petition that the occurrence had taken place during the working hours of the Government Office and both the accused and prosecution party were working in the same Department, of course in various official levels. It is also clear from the prosecution allegation that the incident has taken place in connection with an issue regarding the disbursement of salary to one of the office staff. As stated in the petition for withdrawal, there was no prior meeting of mind and the incident had taken place all of a sudden, not as a result of pre-union of minds. In the above facts and circumstances of the case, the learned Assistant Public Prosecutor has applied his mind and came to a conclusion that for the proper order of the office, it is only proper to withdraw the prosecution or otherwise, the continuation of proceedings will accelerate the enmity between two sets of employees/officers of the same office. Therefore, I am of the view that the above petition was filed by the Assistant Public Prosecutor ## **CRL.M.C.NO. 9271 OF 2002** ## **:-7-:** after having satisfied with the grounds for withdrawal of the case. 7. The main ground taken into consideration by the court below for dismissing the petition was in respect of the existence of a connected case pending between the same parties. In the **Krishnan Kakkanath's case** (cited supra), this Court had held that the existence of connected case is not a total bar for the grant of the petition because in certain cases it may so happen that the withdrawal of the counter case would actually advance the interests of justice and the continuance of a false counter case would actually weaken the main case. In the light of the above decision, especially when the petition filed by the Assistant Public Prosecutor is fully justified, I am of the view that the order of the court below is legally unsustainable and the facts and circumstances involved in the case otherwise warrant to grant permission to withdraw the prosecution. ## **CRL.M.C.NO. 9271 OF 2002** **:-8-:** 8. In the light of the above facts and circumstances of the case and the discussion, Annexure III order is quashed and Annexure II petition is allowed and the petitioners/accused are acquitted of all the charges levelled against them. The Crl.M.C. will stand allowed. **V.K.Mohanan, Judge.** Mbs/ ## **CRL.M.C.NO. 9271 OF 2002** ## **:-9-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.M.C..NO.9271 OF 2002 -------------------------------------------- O R D E R DATED:14-8-2008 ## **CRL.M.C.NO. 9271 OF 2002** **:-10-:**